Justices’ Rulings Overlook Importance of States’ Rights

When I rang the bell of the Gay and Lesbian Community
Center of Baltimore’s office in the 200 block of W. Chase St., I got a
pleasant surprise. The man who greeted me was Anthony McCarthy, a longtime
city activist and publisher of The Gay Life newspaper, former associate
publisher of the Baltimore Times and, at one time, the editor of the Baltimore
Afro-American.

McCarthy and I have served on more than one panel, shared
quite a few laughs and just as many insights. We last met a little over a
month ago, when he urged a group of high school students gathered at Mount St.
Mary’s College for a conference of the Hugh O’Brian Youth Foundation not
to buy into any government claims about the need for censorship.

Thus fate—I choose to consider it darned good
luck—decided that McCarthy would be available to discuss the Supreme
Court’s Lawrence vs. Texas decision, in
which the court struck down Texas’s sodomy law that made sexual conduct
between gays and lesbians a criminal offense, even if it’s conducted in the
privacy of their own homes.

McCarthy was eager to talk about the decision. It “was
probably the most significant civil rights case handed down in my lifetime,”
said McCarthy, 35. “It has far-reaching implications.”

The justices declared that law and those in 12 other
states—three of which targeted gays and nine that made it illegal for
homosexuals and heterosexuals alike—were unconstitutional. Justice Sandra
Day O’Connor said—correctly, in my view—that the Texas law violated the
14th Amendment guarantee of equal protection under the law.

The 14th Amendment also says all people born in the
United States are citizens. No matter how you, I, or anyone else feels about
homosexual conduct, by definition gays and lesbians are citizens. States
clearly can’t make laws targeting one group.

Justice Anthony Kennedy went further, of course, dredging
up a 14th Amendment “right to privacy” that doesn’t exist and declaring
the admittedly stupid and ultimately unenforceable laws in the nine states
that proscribe certain types of sexual conduct for everybody as
unconstitutional. So, yet again, we have Supreme Court justices rooting around
in the penumbra of the Constitution, where they don’t belong.

Chief Justice William H. Rehnquist and Associate Justices
Antonin Scalia and Clarence Thomas saw this for the judicial legislating it
was and called the majority on it. Then there was the matter of the
inconsistent manner in which the majority applied the 14th Amendment.

“The court ruled in Grutter vs. Bollinger,” I
proffered to McCarthy, “that whites who apply to colleges don’t have 14th
Amendment protection. Then it ruled in Lawrence that gays and lesbians
do have 14th Amendment protection. Doesn’t the 14th Amendment apply to
everybody?”

McCarthy paused for a second.

“What the Supreme Court did,” he began, “was
recognize that the right to privacy does not stop at the door of gays and
lesbians in America. Then they reached a little bit further, as this court is
wont to do. They reached out and struck down all sodomy laws in the
country.”

But, I asked McCarthy, hadn’t 37 of 50 state
legislatures already done that: strike down sodomy laws and reaffirm the right
to privacy, in essence telling those 37 state governments to keep their silly
noses out of people’s bedrooms?

“Kennedy and the other [five] justices were trying to
force on the American people a debate that legislatures are too cowardly to
take on,” McCarthy countered. “I shudder to think of where
African-Americans would have been if the courts hadn’t intervened. I see
nothing wrong with the [Supreme] Court more or less forcing the hand of the
American people.”

Ah, if only the high court were consistent in forcing
that hand. I posed another question to McCarthy, one that goes right to the
heart of this penumbra business: Suppose a member of the Pink Pistols—a
gay/lesbian group that believes gays and lesbians should arm themselves and
shoot people who attack them—actually does so in Maryland. He or she would
face a 5-year minimum under state law for the handgun violation alone. Suppose
he or she claimed that the rights to self-defense and to carry a handgun lurk
in the Constitution’s penumbra? How would the court rule?

“I can see the argument,” McCarthy acknowledged.
“In that case, the court would uphold whatever the state legislature’s
laws are.”

Exactly. Which is why Supreme Court justices should
cease raids on the Constitution’s penumbra and let state legislatures do
their jobs. McCarthy and I will have to agree to disagree.